§ 1724. Certification procedure

(a)(1) A petition may be filed with the Board, in accordance with rules adopted by the Board:

(A) By an employee or group of employees, or any individual or employee organization purporting to act on their behalf, alleging that not less than 30 percent of the employees wish to form a bargaining unit and be represented for collective bargaining, or assert that the individual or employee organization currently certified as bargaining agent is no longer supported by at least 51 percent of the employees in the bargaining unit, or that not less than 51 percent of the employees now included in an approved bargaining unit wish to form a separate bargaining unit under Board criteria for purposes of collective bargaining. The employee, group of employees, individual, or employee organization that files the petition shall, at the same time that the petition is filed with the Board, provide a copy of the petition to the employer and, if appropriate, the current bargaining agent.

(B) By the employer alleging that the presently certified bargaining unit is no longer appropriate under Board criteria. The employer shall provide a copy of the petition to the current bargaining agent at the same time that the petition is filed with the Board.

(2)(A)(i) An employer shall, not more than seven business days after receiving a copy of the petition, file any objections to the appropriateness of the proposed bargaining unit and raise any other unit determination issues with the Board and provide a copy of the filing to the employee, group of employees, individual, or employee organization that filed the petition.

(ii) A hearing shall be held before the Board pursuant to subdivision (d)(1)(B) of this section in the event the employer challenges the appropriateness of the proposed bargaining unit, provided that a hearing shall not be held if the parties stipulate to the composition of the appropriate bargaining unit and resolve any other unit determination issues before the hearing.

(iii) The Board may endeavor to informally mediate any dispute regarding the appropriateness of the proposed bargaining unit prior to the hearing.

(B)(i) Within five business days after receiving a copy of the petition, the employer shall file with the Board and the employee or group of employees, or the individual or employee organization purporting to act on their behalf, a list of the names and job titles of the employees in the proposed bargaining unit. To the extent possible, the list of employees shall be in alphabetical order by last name and provided in electronic format.

(ii) An employee or group of employees, or any person purporting to act on their behalf, that is seeking to demonstrate that the current bargaining agent is no longer supported by at least 51 percent of the employees in the bargaining unit shall not be entitled to obtain a list of the employees in the bargaining unit from the employer pursuant to this subdivision (a)(2)(B), but may obtain a list pursuant to subdivision (e)(3) of this section after the Board has investigated its petition and determined that a secret ballot election shall be conducted.

(iii) The list shall be kept confidential and shall be exempt from copying and inspection under the Public Records Act.

(b) The Board, a Board member, or a person or persons designated by the Board shall investigate the petition and do one of the following:

(1) Determine that the petition has made a sufficient showing of interest pursuant to subdivision (a)(1)(A) of this section.

(2)(A) If it finds reasonable cause to believe that a question of unit determination or representation exists, the Board shall schedule a hearing to be held before the Board not more than ten business days after the petition was filed with the Board.

(B) Once scheduled, the date of the hearing shall not be subject to change except as provided pursuant to subdivision (e)(4) of this section.

(C) Hearing procedure and notification of the results of the hearing shall be in accordance with rules adopted by the Board, except that the parties shall only be permitted to submit posthearing briefs within not more than five business days after the hearing if the parties mutually agree to do so or if the Board requests that the parties submit posthearing briefs.

(D) The Board shall issue its decision as soon as practicable and, in any event, not more than five business days after the hearing or the submission of any posthearing briefs.

(3) If the Board finds an absence of substantive evidence, it shall dismiss the petition.

(c) In determining whether a question of representation exists, the Board shall take into consideration the following criteria:

(1) The similarity or divergence of the interests, needs, and general conditions of employment of all employees within the proposed bargaining unit. The Board may, in its discretion, require that a separate vote be taken among any particular class or type of employee within a proposed unit to determine specifically if the class or type wishes to be included. No bargaining unit shall include both professional employees and other municipal employees unless a majority of such professional employees vote for inclusion in such unit.

(2) Whether overfragmentation of units will result from certification to a degree that is likely to produce an adverse effect on the effective representation of other employees of the municipal employer or upon the effective operation of the municipal employer.

(3) In determining whether a unit is appropriate the extent to which the employees have organized is not controlling.

(d) Nothing in this chapter prohibits the waiving of hearings by stipulation for a consent election in conformity with regulations and rules of decision of the Board.

(e)(1) In determining the representation of municipal employees in a collective bargaining unit, the Board shall conduct an election by secret ballot of the employees and certify the results to the interested parties and to the employer. The election shall be held not more than 23 business days after the petition is filed with the Board except as otherwise provided pursuant to subdivision (4) of this subsection.

(2) The original ballot shall permit a vote against representation by anyone named on the ballot. No representative will be certified with less than a 51 percent affirmative vote of all votes cast. If it is asserted that the certified bargaining agent is no longer supported by at least 51 percent of the employees in the bargaining unit and there is no attempt to seek the election of another employee organization or individual as bargaining representative, there shall be at least 51 percent negative vote of all votes cast to decertify the existing bargaining agent.

(3)(A) The employer shall file with the Board and the other parties a list of the employees in the bargaining unit within two business days after the Board determines that a secret ballot election shall be conducted.

(B) The list shall include, as appropriate, each employee’s name, work location, shift, job classification, and contact information. As used in this subdivision (3), “contact information” includes an employee’s home address, personal e-mail address, and home and personal cellular telephone numbers to the extent that the employer is in possession of such information.

(C) To the extent possible, the list of employees shall be in alphabetical order by last name and provided in electronic format.

(D) The list shall be:

(i) kept confidential by the Board and all of the parties; and

(ii) shall be exempt from copying and inspection under the Public Records Act.

(E) Failure to file the list within the time required pursuant to subdivision (A) of this subdivision (3) may be grounds for the Board to set aside the results of the election if an objection is filed within the time required pursuant to the Board’s rules.

(4) The Board may, upon the request of any party or on its own motion, extend any time period set forth in this subsection or in subsections (a) and (b) of this section for good cause, provided that the election shall be conducted, or, in the event of a mail ballot election, that ballots are mailed to the employees, within not more than 60 calendar days after the date the petition is filed pursuant to subsection (a) of this section. The Board may further extend the date to conduct the election by not more than 30 additional calendar days upon the mutual agreement of the parties or if it determines that extraordinary circumstances have made such an extension necessary.

(f) If in such election none of the choices receive at least a 51 percent affirmative vote of all votes cast, a runoff election shall be conducted, the ballot providing for a selection between the two choices receiving the largest and second largest number of valid votes cast in the original election.

(g) The Board’s certification of the results of any election shall be conclusive as to findings unless reviewed under proceedings instituted for the prevention of unfair labor practices.

(h) No election may be conducted under this section in a bargaining unit or a subdivision within which in the preceding 12 months a valid election has been held. (Added 1973, No. 111, § 1; amended 1989, No. 135 (Adj. Sess.); 2019, No. 180 (Adj. Sess.), § 3, eff. Jan. 1, 2021.)